Kemp v. United States

This
matter is before the Court on the motion of Bobby Joe Kemp to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C.
§ 2255.[1] The United States has filed a response in
opposition.

I.
Background

On May
20, 2013, Kemp pled guilty to conspiracy to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C.
§ 846 (Count I) and possessing a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g) (Count II).
The penalties for the offense in Count I included a mandatory
minimum sentence of 10 years' imprisonment. See
21 U.S.C. § 841(b)(1)(A). Based on his prior felony
convictions, Kemp was found to be a career offender with
respect to Count I (see U.S.S.G. §4B1.1) and an
armed career criminal with respect to Count II (see
18 U.S.C. §924(e)(1) and U.S.S.G. §4B1.4(a)). As a
result of the armed career criminal designation, Kemp faced a
mandatory minimum sentence of 15 years' imprisonment for
the firearm offense. On November 26, 2013, Kemp was sentenced
to concurrent terms of 210 months'
imprisonment.[2] He did not appeal the judgment.

II.
Discussion

A.
Ineffective Assistance of Counsel

In the
instant motion, Kemp asserts that he was denied effective
assistance of counsel. To prevail on an ineffective
assistance claim, a movant must show that his attorney's
performance fell below an objective standard of
reasonableness and that he was prejudiced thereby.
Strickland v. Washington, 466 U.S. 668, 688 (1984). With
respect to the first Strickland prong, there exists
a strong presumption that counsel's conduct falls within
the wide range of professionally reasonable assistance.
Id. at 689. In Strickland, the Supreme
Court described the standard for determining an ineffective
assistance claim:

[A] court deciding an actual ineffectiveness claim must judge
the reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct. A convicted defendant making a claim
of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance. In making that
determination, the court should keep in mind that
counsel's function, as elaborated in prevailing
professional norms, is to make the adversarial testing
process work in the particular case. At the same time, the
court should recognize that counsel is strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.

Strickland, 466 U.S. at 690.

To
establish the ''prejudice'' prong, the movant
must show ''that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.'' Id. at 694. The
failure to show prejudice is dispositive, and a court need
not address the reasonableness of counsel's performance
in the absence of prejudice. United States v. Apfel,97 F.3d 1074, 1076 (8th Cir. 1996).

Ground
One

Kemp's
first claim is that defense counsel's failure to
challenge the armed career criminal designation in light of
Descamps v. United States, __U.S.__, 133 S.Ct. 2276,
186 L.Ed.2d 438 (2013), constituted ineffective assistance.
At the time he was sentenced, Kemp had three Missouri felony
convictions for burglary second degree. He contends that
after the ruling in Descamps, burglary second degree
no longer qualifies as a violent felony for purposes of the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
and U.S.S.G. § 4B1.4(a).

In
Descamps, the Supreme Court held that a sentencing
court, in determining whether a defendant's prior
conviction qualifies as a predicate offense under the ACCA,
“may not apply the modified categorical approach when
the crime of which the defendant was convicted has a single,
indivisible set of elements.” 133 S.Ct. at 2282. The
defendant in Descamps had a prior conviction for
burglary under California law. The Supreme Court ruled that
because a conviction under the California statute “is
never for generic burglary” the defendant's
conviction was not a predicate violent felony under the ACCA.
Id. at 2293.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
United States v. Olsson, 713 F.3d. 441 (8th Cir.
2013), the Eighth Circuit held that a defendant&#39;s
Missouri conviction for burglary second degree constituted a
&ldquo;crime of violence&rdquo; for purposes of the career
offender guideline, U.S.S.G. &sect; 4B1.1. Id. at
449-50. The defendant sought review by the United States
Supreme Court which remanded the case to the appellate court
for reconsideration in light of Descamps. Olsson
v. United States, __U.S.__, 134 S.Ct. 530, 187 L.Ed.2d
361 (2013). On remand, the court of appeals found that
“the basic elements of the Missouri second-degree
burglary statute are the same as those of the generic
...

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